SEALING JUVENILE RECORDS & ETHICAL DUTY TO CLIENTS Libby L. Wiedermann Attorney at Law 206 E. Locust St. San Antonio, Texas 78212 210-392-6442
58.003 Texas Family Code 58.003(a) - (d) TFC - On application of child or Court s own motion - Court shall order sealing of misdemeanor, CINS, or unadjudicated offenses if: 2 years since final discharge or inaction & No subsequent conviction for felony or misdemeanor involving crime of moral turpitude or adjudications or CINS No proceeding pending seeking conviction or adjudication - Court may seal Felony adjudications: After child turns 19 (big change from 21 on Sept. 1, 2011) no transfer to adult court Records not used as punishment evidence in criminal proceeding No felony convictions since turning 17
58.003(a) - (d) TFC (con t) - Court may seal unadjudicated offenses at any time after final discharge or last official action - Not guilty verdicts require immediate sealing; no hearing required - Discretionary sealing of felony or misdemeanor records upon successful completion of drug court program; can be with or without a hearing - New provisions added Sept. 1, 2011 pertaining to sealing of records for: adjudications or arrests for prostitution; and texting/emailing photos of minors engaging in sexual conduct
Records that cannot be sealed Determinate Sentence records Sex Offenses/Sex Offender records while there is a continuing duty to register
Duty to Inform Your Client Plea Papers/Stipulations give notice Judge gives notice in admonishments Attorney should give client and parent specific information regarding sealing 1. Can offense be sealed 2. When can child apply 3. What child must avoid in order to be eligible Consider eligibility in plea negotiations
Application Requirements 58.003(p) TFC - Application filed in county where proceedings occurred - Application must contain: Full name/sex/race/dob DL or ID # SS # Offense charged or referred Offense date and county where committed Case number (or referral number), Court and County where petition, if any was filed, or where hearing held See Sample Application or go to ww.juvenilelaw.org/forms.php
Who has records to seal? Probation Department (include other county if case transferred) Prosecuting Agency Arresting/Investigating Agency (maybe more than one) District Clerk s Office Juvenile Detention Center DPS, Information Resource Center, Texas Crime Information Center (TCIC), National Crime Information Center (NCIC), FBI TJJP, Parole, Placement Facility School, School District, School Police Child Protective Services Treatment providers, counselors, community service agency (consider all conditions of probation) Think outside the box See Sample Application and Order for addresses
Hearings to Seal Records 58.003(e) TFC - Court shall hold hearing unless Applicant waives hearing in writing; and court and prosecutor consent - Reasonable notice of hearing shall be given to: Child Prosecutor Probation Parole any agency or institution named in application
What to present at a Hearing? Character References, i.e. teacher, coach, scout leader, clergy, etc. Letters from Character References Grades & Attendance Records Records from treatment provider or counselor Probation Officer and/or Probation Records Victim, Victim s Parent, or letter from same Consider preparing packet and filing with Court before hearing and provide copy to prosecutor
What happens after the Application to Seal is granted and Order is signed? 58.003(f) TFC Copy of order is sent to each agency or official named in order agencies have 60 days to send records to clerk/court All indexing records must be deleted and a verification of the deletion must also be sent within 60 days If no records exist, agency must notify Court of same If order is incorrect, agency must notify the Court within 60 days and the Court then has 60 days from date of notification to notify person or his attorney of the inability to seal
When is the lawyer s job done? Attorney filing Application has continuing duty to client: Were all agencies notified of order to seal Did all agencies comply with order Does the agency/institution actually have records to seal Were all errors corrected Provide Applicant with certified copy of order Advise client of effect of sealing
Effect of Sealing 58.003(g)(5) & (j ) TFC Adjudication is vacated and proceeding is dismissed Can t be used against Applicant, except in subsequent capital prosecution Applicant can legally deny the conduct, offense, arrest or adjudication
Are Sealed Records Sealed Forever? Records can be unsealed if: Juvenile petitions and receives consent of Court Prosecution petitions Court to unseal felony adjudications for purpose of enhancing punishment in adult cases DPS makes request to Court for processing concealed handgun applications
MISC. PROVISIONS DESTRUCTION OF RECORDS 58.0071 TFC --Records & files of a juvenile case may be destroyed if authorized by: juvenile board, law enforcement agency, or a prosecuting attorney if-- Electronically duplicated & 18 yrs old & CINS case 21 yrs old & misd adj or unadj felony 31 yrs old & felony adjudication
Destruction of Certain Records (when cases are rejected) 58.006 TFC Court shall order destruction of records relating to conduct when child is taken into custody if: No p/c by Court or probation and no referral to prosecutor, or No p/c by prosecutor Duty to Client to make sure statute enforced; if not, file Motion with Court, pursuant to statute.
Who can look at juvenile files? (before they are sealed) Physical Records or Files 58.007 TFC Applies to Court, Probation & DA files Open for inspection only by: Juvenile Court Judge Juvenile Probation Officers Professional Consultants/Staff of Court Juvenile Justice Agency Attorney for Party Agency providing supervision (i.e. placement)
Restricted Access Certification 58.203, Texas Family Code Records subject to automatic restriction of access if: Person is at least 17 (legislative change from 21 in 2011) Juvenile case did not include violence of habitual felony conduct resulting in proceedings in the juvenile court Juvenile case not certified for trial in criminal court Exempted Records 58.202 Texas Family Code Sex offender registration records Records relating to criminal combinations and street gangs
Restricted Access (con t) 58.204 Texas Family Code -DPS may not disclose existence of records or info. in records in response to inquiry from: Law enforcement agency Criminal or juvenile justice agency Govt. agency Any other person, agency, organization or entity -DPS must respond that the records do not exist - Exception: criminal justice agency for a criminal justice purpose or for research purposes - Similar to a non-disclosure
Restricted Access (con t) What protected person can say 58.206, Family Code Right to deny existence of records in all situations except when the subject of the records is testifying as a defendant in a criminal trial. Person cannot waive restricted access of records or consequences of restricted access. But person with restricted access fully accountable for criminal conduct, like enhancement of criminal sentence by proof of juvenile felony adjudication with TYC commitment or juvenile adjudications in criminal penalty phase.